Section 6 of the Employment Equity Act (EEA) prohibits unfair discrimination against employees on arbitrary grounds, including that of race, sex, disability, age and many others. Not all discrimination is unfair. In other words, certain types of discrimination can be fair. For example, giving company cars to managers and not to other employees is a form discrimination, but is not necessarily unfair because it is based on legitimate business- or operational reasons and on not on the employer’s personal beliefs or prejudices.
As indicated above, age can be grounds for unfair discrimination, such as refusing to appoint a person under 14 years old. However, this is not unfair discrimination because the law says that employers may not hire employees younger than 15 years old. But an employer cannot force an employee to retire before the employer’s normal retirement age – and it logically follows that it becomes extremely difficult if the Employer does not have a “normal retirement age”!
In the case of Evans vs Japanese School of Johannesburg (2006, 12 BLLR 1146 (LC)) the school required the employee to retire at the age of 61 even though the employment agreement set her retirement age at 65. The Labour Court found that:
- The dismissal was automatically unfair.
- The employer was required, in terms of the Labour Relations Act, to pay the employee twenty-four (24) months’ remuneration in compensation for the unfair dismissal. This amounted to R177 144,00.
- In addition, the employer was ordered to pay the employee further compensation of R200 000,00 for breaching the provisions of the Employment Equity Act prohibiting unfair discrimination.
Employers must protect their employees, as failure to do so can lead to unwanted litigation, damage to their reputation, and even impact their market position and long-term viability. Employers must develop a comprehensive anti-discrimination strategy due to the onerous provisions of laws, as failure to do so could result in legal consequences.